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No. 99-366
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 24
298 Mont. 176
994 P. 2d 1114
TUNGSTEN HOLDINGS, INC.,
Plaintiff and Respondent,
v.
LENA J. KIMBERLIN a/k/a LENA J. WHITSON,
JOYCE LYNN KIMBERLIN and ANTHONY KIMBERLIN,
Defendants and Appellants.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
L. Charles Evans; Evans Law Office, Libby, Montana
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For Respondent:
Thomas R. Bostock; Warden, Christiansen, Johnson & Berg, Kalispell, Montana
Submitted on Briefs: October 28, 1999
Decided: January 31, 2000
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1.Appellants Lena Kimberlin et al. (hereafter, the Kimberlins), appeal the judgment upon
remittitur of the Nineteenth Judicial District Court, Lincoln County.
¶2.We affirm.
¶3.We restate the issues as follows:
¶4. Whether the District Court erred in determining that the easement has a two-lane width.
¶5. Whether the District Court erred in failing to limit Tungsten's use of the road to
agricultural and recreational uses.
¶6. Whether the District Court erred in failing to explicitly limit Tungsten's easement to
the portion of the historical road that lies on the Kimberlins' property.
¶7. Whether the District Court abused its discretion in enjoining the Kimberlins from
installing a gate on the road.
Standard of Review
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¶8.We review a district court's findings of fact to determine whether they are clearly
erroneous. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d
1285, 1287. We review a district court's conclusions of law de novo to determine whether
they are correct. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d
601, 603.
Factual and Procedural Background
¶9.Respondent Tungsten Holding (Tungsten) owns a parcel of land in Lincoln County.
The Kimberlins own a parcel of land that is south of and adjacent to Tungsten's land.
Tungsten has an easement over a road that traverses the Kimberlins' property and provides
access to Tungsten's property.
¶10.The properties owned by the parties were originally a single homestead located
approximately eight miles northwest of Libby. Andrew Merritt (Merritt) patented the
homestead as Homestead Entry Survey (HES) No. 744 in March, 1929. In April, 1929,
Merritt sold the northern forty-five acres of the homestead (hereafter, the northern parcel)
to Albert Grambauer, whose family held the parcel until 1991, when Tungsten acquired
the property. None of the documents comprising the chain of title for the northern parcel
reference an easement across the southern parcel. In 1951, the Kimberlins purchased the
southern parcel from Merritt. In 1973, the Kimberlins partitioned the southern parcel into
two parcels, one owned by Lena Whitson (formerly Lena Kimberlin), the other owned by
Anthony and Katherine Kimberlin.
¶11.The District Court found that
a.In 1909, approximately twenty years before Merritt patented the homestead, a road was
built along Quartz Creek to access a Forest Service timber sale further up the drainage.
The road passed through what became HES 744, ending in a trail which extended to the
head of Quartz Creek. Forest Service records show the road was designated as Road No.
399 and was maintained by the Forest Service beginning in approximately 1931.
b.At the time of the severance of the property in 1929, Road No. 399 provided the only
access to the northern parcel. The District Court determined that the public easement on
Road No. 399 provided Tungsten's predecessors with legal access to the northern parcel.
During the 1950s, the Forest Service abandoned Road No. 399.
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¶12.In September, 1995, Tungsten filed a complaint in District Court seeking to quiet title
to an easement across the Kimberlins' property and to a 1.25 acre parcel of land at the
border between its property and that of the Kimberlins. A trial to the bench was held in
January, 1998. In March, 1998, the District Court ruled for the Kimberlins. The District
Court concluded that an implied easement had been created in favor of Tungsten's
predecessor during the 1950s when the Forest Service abandoned Road No. 399.
However, the District Court further concluded that the implied easement had been
extinguished by abandonment and adverse possession. The District Court declared that
Lena Whitson owned the disputed 1.25 acre parcel by adverse possession. Tungsten
appealed the District Court's judgment.
¶13.On appeal, the Kimberlins conceded that there was insufficient evidence to support
the District Court's conclusion that Tungsten's implied easement to the disputed 1.25 acre
parcel had been extinguished by adverse possession. In an unpublished 1999 opinion, this
Court addressed the remaining issue whether the implied easement that once existed in
favor of Tungsten's predecessors was abandoned. Concluding that the issue of
abandonment had not been raised below, we reversed the judgment of the District Court
and remanded with instructions that the District Court "enter judgment quieting title to an
easement across the disputed 1.25 acre parcel in favor of Tungsten by virtue of the implied
easement which the court concluded Tungsten's predecessors acquired." However, we did
not address whether the easement extended not only across the disputed 1.25 acre parcel
but across the Kimberlins' property.
¶14.Following a hearing in April, 1999, the District Court issued its Judgment upon
Remittitur. The District Court noted that "[t]he parties apparently agree that the easement
which was the subject of this lawsuit did not extend only across the disputed 1.25 acre
parcel but also across the entire length of Kimberlin's property. In any event, the parties
declined to seek clarification of that point from the Supreme Court when they had an
opportunity to do so." The District Court concluded that Tungsten is entitled to an access
easement over a road that traverses the Defendants' property in a north/south direction.
This road was formerly known as U.S. Forest Service Road No. 399. A portion of the road
currently exists on the Defendants' property, and extends from the county road, known as
"River Road," to a point on the Defendants' property. The easement herein granted shall
extend to the existing road, as well as to that portion of Road No. 399 that formerly
existed so as to provide reasonable access to the Plaintiff's property. The parties may agree
in writing to a different, less intrusive, route across Defendants' property.
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¶15.Further, the District Court ordered that the Kimberlins not interfere with Tungsten's
use of the road and that the Kimberlins may not place a gate "across the road or
otherwise." The District Court concluded that "[t]he easement shall be of sufficient width
as to allow construction of a road that will accommodate two vehicles passing each other
safely."
¶16.From that judgment upon remittitur, the Kimberlins appeal.
Discussion
¶17. Whether the District Court erred in determining that the easement has a two-lane
width.
¶18.The Kimberlins argue that the District Court erred in determining that the easement
has a two-lane width. Although the District Court did not explain the basis for its
determination that the easement has a two-lane width, the Kimberlins apparently assume
that the District Court relied in part on testimony that the road was used for logging at the
time of the severance. The Kimberlins argue that at the time of the severance and
thereafter the use of the implied easement has been limited to one-way traffic on a "very
narrow road." Further, the Kimberlins argue that under § 70-20-308, MCA, the only
relevant historical usage of the road is that of the party who transfers the property over
which an easement is implied. The Kimberlins argue that under Albert G. Hoyem Trust v.
Galt, 1998 MT 300, 292 Mont. 56, 968 P.2d 1135, the extent of an implied easement is
limited to its historical usage.
¶19.Tungsten responds that the District Court did not err in determining that the easement
should have a two-lane width. Tungsten argues that the record shows that Road No. 399
was of sufficient width to allow logging trucks to travel the road safely and that maps
described the road as an "automobile road" and "a good motor road." Tungsten argues
further that because Grambauer must have expected that he would meet Merritt on the
same road, the "road should have been wide enough to accommodate two vehicles to pass
one another safely."
¶20."Easements by implication arise when it is necessary to effect a presumed intent on
the part of parties to a deed." Graham v. Mack (1984), 216 Mont. 165, 173-74, 699 P.2d
590, 595 (citation omitted). "To find an implied easement[ ] 'over the property of another,
there must have been a separation of title, and a use before the separation took place which
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continued so long and was so obvious or manifest as to show that it was meant to be
permanent, and it must appear that the easement is necessary to the beneficial enjoyment
of the land granted or retained.'" Graham, 216 Mont. at 174, 699 P.2d at 596 (citation
omitted). Further, an easement by implication "is created by operation of law at the time of
severance." Hoyem, ¶ 17 (citation omitted).
¶21.As an initial matter, we note that the District Court erred in concluding that the
easement by implication arose when the Forest Service abandoned Road No. 399 in the
1950s. Rather, the easement by implication arose at the time of the severance in 1929. See
Hoyem, ¶ 17. The public's use of Road No. 399 at the time of severance did not prevent
the creation of an easement by implication. Compare McPherson v. Monegan (1947), 120
Mont. 454, 461, 187 P.2d 542, 545 (concluding "[t]he easement thus created is
independent of the public right and survives the extinguishment of the public easement").
¶22.We turn to consideration of the scope and extent of the implied easement. Section 70-
17-106, MCA, provides: "Extent of servitude. The extent of a servitude is determined by
the terms of the grant or the nature of the enjoyment by which it was acquired."
¶23.Section 70-20-308, MCA, further provides:
Easements to pass with property. A transfer of real property passes all easements
attached thereto and creates in favor thereof an easement to use other real property of the
person whose estate is transferred in the same manner and to the same extent as such
property was obviously and permanently used by the person whose estate is transferred for
the benefit thereof at the time when the transfer was agreed upon or completed.
¶24.In Fristoe v. Drapeau (Cal. 1950), 215 P.2d 729, the court interpreted two California
statutes with language identical to that in §§ 70-16-106 and 70-20-308, MCA. In Fristoe, a
common grantor built a permanent roadway over a tract that the grantor then subdivided.
The court in Fristoe addressed the issue whether "the trial court should have limited
plaintiff's rights over the roadway to use for agricultural purposes, thereby precluding its
use as a means of ingress and egress to and from a residence which plaintiff has indicated
she intends to build on her property." Fristoe, 215 P.2d at 732. The defendants in Fristoe
argued that the plaintiff's easement was limited to the use "being made of the roadway at
the time of the severance of plaintiff's parcel." Fristoe, 215 P.2d at 732.
¶25.The Fristoe court interpreted section 1104 of the Civil Code, which is identical in
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language to § 70-20-308, MCA, and concluded that it "must be read with section 806 of
the Civil Code," which is identical in language to § 70-17-106, MCA. Fristoe, 215 P.2d at
732. The Fristoe court concluded that "[t]he effect of section 806 is to establish intent as
the criterion, and this is in accord with the rationale of the rules governing easements by
implication." Fristoe, 215 P.2d at 732. The Fristoe court held that "in determining the
intent of the parties as to the extent of the grantee's rights, we are of the opinion that
consideration must be given not only to the actual uses being made at the time of the
severance, but also to such uses as the facts and circumstances show were within the
reasonable contemplation of the parties at the time of the conveyance." Fristoe, 215 P.2d
at 732.
¶26.The Restatement provides that
The extent of an easement created by implication is to be inferred from the circumstances
which exist at the time of the conveyance and give rise to the implication. Among these
circumstances is the use which is being made of the dominant tenement at that time. Yet it
does not follow that the use authorized is to be limited to such a use as was required by the
dominant tenement at that time. It is to be measured rather by such uses as the parties
might reasonably have expected from future uses of the dominant tenement. What the
parties might reasonably have expected is to be ascertained from the circumstances
existing at the time of the conveyance. It is to be assumed that they anticipated such uses
as might reasonably be required by a normal development of the dominant tenement. It is
not to be assumed, however, that they anticipated an abnormal development. Hence, the
scope of an easement created by implication does not extend to uses required by such
development.
Restatement of Property § 484 cmt.b (1944).
¶27.We agree. We hold that in determining the intent of the parties regarding the extent of
an easement created by implication, "consideration must be given not only to the actual
uses being made at the time of the severance, but also to such uses as the facts and
circumstances show were within the reasonable contemplation of the parties at the time of
the conveyance." Fristoe, 215 P.2d at 732. We hold further that the extent of an easement
created by implication "is to be measured . . . by such uses as the parties might reasonably
have expected from future uses of the dominant tenement." Restatement of Property § 484
cmt.b (1944).
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¶28.As previously discussed, the Kimberlins rely on Hoyem to argue that the extent and
scope of an easement are "limited to its historical use at the time the easement was
created." Hoyem, ¶ 30. However, we note that the Hoyem Court recognized in dicta that
the scope of an easement is "limited to the uses the parties might reasonably have expected
or anticipated." Hoyem, ¶ 31. We conclude that our holdings in the present case modify
Hoyem by requiring, as previously discussed, that in determining the scope and extent of
an implied easement, consideration be given to the intent and reasonable expectations of
the parties at the time of severance.
¶29.Before reviewing the District Court's conclusions regarding the extent of the easement
in the present case, we note further that the Kimberlins are correct that third parties' use of
the road to log forest service land is not relevant to a determination of the historical uses
of the road. Again, the District Court's judgment upon remittitur does not reveal whether it
considered past logging in determining the scope of the easement. However, to the extent
that the District Court may have considered logging, the District Court erred because the
record indicates that such logging was not undertaken for the benefit of the northern parcel
or dominant tenement. In determining historical uses at the time of severance, the relevant
uses are those that benefit the dominant tenement. Compare Restatement of Property §
484 cmt.b (1944) (recognizing nexus between extent of easement and the uses of the
dominant tenement).
¶30.With the foregoing in mind, we turn to the issue whether the District Court erred in
determining that the road should be two lanes in width. We agree with Tungsten that
Grambauer and Merritt would reasonably have contemplated that they would meet on the
same road. We hold that the District Court did not err in determining that the parties
intended that the road be wide enough to accommodate the safe passage of two vehicles,
as would be "reasonably necessary for the enjoyment of [Grambauer's land]." Hoyem, ¶ 22
(citations omitted).
¶31.Whether the District Court erred in failing to limit Tungsten's use of the road to
agricultural and recreational uses.
¶32.The Kimberlins argue that Merritt, Grambauer, and Grambauer's heirs have made
"primarily" agricultural and recreational uses of the road and that the District Court
therefore erred in failing to limit Tungsten's use of the road to agricultural and recreational
purposes. Tungsten responds that in determining the usage of the road, the relevant time
frame is not what occurred after the severance but rather the uses of the road at the time of
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the severance. Tungsten argues that there is no evidence that Merritt intended Grambauer
to have anything less than full and unrestricted access to Grambauer's northern parcel.
¶33.As previously noted, the use of the easement at the time of the severance does not
provide absolute limits to the use of the easement. We assume rather that the parties
"anticipated such uses as might reasonably be required by a normal development of the
dominant tenement." Restatement of Property § 484 cmt.b (1944). The Kimberlins have
not pointed to anything concerning "the circumstances existing at the time of the
conveyance" that would suggest that the parties intended that the use of the road be limited
to agricultural and recreational purposes. Restatement of Property § 484 cmt.b (1944). Nor
have the Kimberlins shown that a normal development of the northern parcel would be
limited to agricultural and recreational purposes. We hold that the District Court did not
err in failing to limit the use of the easement to agricultural and recreational uses. We note,
however, that whether any use of the road by Tungsten is an "abnormal development" is
not before the Court. Restatement of Property § 484 cmt.b (1944).
¶34. Whether the District Court erred in failing to explicitly limit Tungsten's easement to
the portion of the historical road that lies on the Kimberlins' property.
¶35.The Kimberlins argue that the District Court erred in finding that the road lies wholly
within the southern parcel before it reaches the northern parcel. The Kimberlins argue that
the road "occasionally meanders onto Forest Service land" and that the District Court
should therefore have ruled that the implied easement only applies to the portions of the
historic road that lie upon the Kimberlins' land. Tungsten responds that "there may have
been portions of the road that crossed Appellants' property line into Forest Service land."
Tungsten argues, however, that its easement has elements of both implied easements by
existing use and implied easements by necessity. Tungsten argues further that because it
cannot as a matter of law have an implied easement by necessity on the land of a third
party, in this case the Forest Service, the District Court correctly concluded that
Tungsten's easement lies wholly within the Kimberlins' land. The Kimberlins respond that
Tungsten has not preserved this issue for review.
¶36.Contrary to the Kimberlins' position, our review of the record establishes that the
Kimberlins are barred by res judicata from litigating this issue. In its March, 1998
judgment, the District Court found that the road was located wholly within the southern
parcel before it reached the northern parcel. However, when Tungsten appealed that
judgment, the Kimberlins did not cross-appeal the District Court's finding regarding the
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location of the road within the south parcel. In Wellman v. Wellman (1982), 198 Mont.
42, 45-46, 643 P.2d 573, 575 (emphasis added) (citation omitted), we concluded that "[o]
nce there has been full opportunity to present an issue for judicial decision in a given
proceeding, . . . the determination of the court in that proceeding must be accorded finality
as to all issues raised or which fairly could have been raised, else judgments might be
attacked piecemeal and without end." Further, in Bragg v. McLaughlin, 1999 MT 320, ¶
21, __ P.2d __, ¶ 21, 56 St.Rep. 1276, ¶ 21, we concluded that "[t]he doctrine of res
judicata bars not only issues which were previously litigated, but also issues which could
have been litigated in the prior proceeding") (citation omitted). We conclude that the
doctrine of res judicata bars our consideration of this issue.
¶37.. Whether the District Court erred in ordering that the Kimberlins may not install a
gate on the road.
¶38.The Kimberlins argue that the District Court erred in enjoining them from placing a
gate across the road. The Kimberlins argue that a gate is necessary for the reasonable use
of their land and that a gate would not unreasonably interfere with Tungsten's use of its
land. Tungsten responds that there is no evidence that Merritt intended that Grambauer
have anything less than the unrestricted access to the northern parcel that Merritt enjoyed.
Tungsten argues that to allow a gate on the road would defeat Merritt's original intent and
impose a negative servitude on Tungsten's property that is not part of the deed that
Grambauer received from Merritt.
¶39.In Gabriel v. Wood (1993), 261 Mont. 170, 862 P.2d 42, the district court declined to
enjoin a landowner from maintaining gates across a common road. We concluded that
where the placement of a gate is not expressly prohibited by the grant of an easement or
impliedly prohibited by the surrounding circumstances, a gate may be constructed across
the easement if it is necessary for the reasonable use of the servient estate and does not
interfere with reasonable use of the right-of-way.
Gabriel, 261 Mont. at 177, 862 P.2d at 46 (citations omitted) (emphasis added). In
Gabriel we determined that testimony by a landowner, Wood, and by a veterinarian
established that a gate was reasonably necessary to prevent injury to the landowner's
horses. Wood's testimony further established that a locked gate was reasonably necessary
to prevent vandalism and theft and that people had trespassed on his property, costing him
several thousand dollars. We concluded that a locked gate was reasonably necessary for
the enjoyment of Wood's property. Gabriel, 261 Mont. at 177, 862 P.2d at 46.
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¶40.In the present case, we hold that the District Court did not abuse its discretion in
enjoining the Kimberlins from impeding the road by means of a gate or other device.
Compare Gabriel, 261 Mont. at 174, 862 P.2d at 44 (citation omitted) (concluding grant or
denial of an injunction is within discretion of district court ). Assuming arguendo that a
gate is not "impliedly prohibited by the surrounding circumstances," Gabriel, 261 Mont. at
177, 862 P.2d at 46, we conclude that the Kimberlins have pointed to no evidence in the
record that would support their contention that maintenance of a gate across the road is
reasonably necessary for their enjoyment of their property.
¶41.Affirmed.
/S/ W. WILLIAM LEAPHART
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ KARLA M. GRAY
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